Parliamentary and Health Service Ombudsman / Improving Services / Selected Cases / Access to Official Information / Investigations Completed July 2004

Mr Bowcott complained that the Ministry of Defence (MoD) refused to supply him with information relating to military training assistance provided to Colombia by MoD and UK Armed Forces between 2000 and 2003. MoD had provided him with a summary of the military training assistance that had been provided to Colombia, giving the dates, purpose and cost of liaison visits that had taken place. They also provided details of the training received by Colombian officials in the UK, for the period in question, and details of the Foreign and Commonwealth Office’s support of a related project. All remaining material, however, was withheld by MoD under Exemption 1(a) and 1(b) of the Code. In responding to the complaint, the Permanent Secretary of MoD said that Mr Bowcott’s request had prompted them to review their policy on disclosure of information relating to the subject of military assistance to Colombia and that additional information, not requested by Mr Bowcott, had been provided to him in order to give a fuller picture of UK support for Colombia. That said, the Permanent Secretary maintained that the remaining information withheld by MoD was confidential to both UK and Colombian Governments, was sensitive and, if disclosed, could put at risk the safety of UK personnel in Colombia. Consequently, he was of the view that the withheld information fell squarely within Exemptions 1(a) and 1(b). The Ombudsman found that MoD had provided Mr Bowcott with a substantial amount of information, but that the public interest in disclosing the withheld information was outweighed by the harm its disclosure would cause to the security of UK personnel in Colombia and the damage it would cause to the relationship between the UK and Colombia. The Ombudsman did not uphold the complaint.

1. Mr Bowcott complained that the Ministry of Defence (MoD) had refused to supply him with information that should have been made available to him under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by the Ombudsman’s staff but I am satisfied that no matter of significance has been overlooked.

Background to the complaint

2. On 24 July 2003 Mr Bowcott wrote to and e-mailed MoD requesting information relating to the military training assistance provided to Colombia by MoD and UK Armed Forces between 2000 and 2003. Mr Bowcott asked, citing the Code, for details of the training itself and the dates on which it had been given. In addition, he asked how many liaison teams had been sent to Colombia during the period in question, what their functions were and the dates on which they had been sent. Finally, he asked for details of the cost of the assistance given for each financial year from 2000 to 2003.

3. On 25 July 2003 MoD acknowledged receipt of Mr Bowcott’s e-mail and, on 20 August 2003, an official from the MoD Overseas Secretariat responded substantively. In their reply, MoD provided a summary of the military training assistance provided from 2000 to 2003, giving the dates, purpose and overall cost of the liaison visits that had taken place. MoD also provided details, including dates and purpose, of the training received by Colombian officials in the UK during the same period, together with details of the Foreign and Commonwealth Office’s support of a related project. MoD said that they were withholding the remaining material, which related to other aspects of advice and assistance provided to Colombia, under Exemption 1 of the Code.

4. On 2 September 2003 Mr Bowcott wrote to MoD asking them to review their decision not to release the information withheld under Exemption 1 on the grounds that there was a clear public interest in making that information available. Mr Bowcott also asked that MoD provide him with a breakdown of the cost of the assistance into individual financial years for the relevant period, as previously requested.

5. On 24 September 2003 MoD wrote to Mr Bowcott with the results of their internal review. First, MoD provided the requested breakdown by financial year of the costs of the assistance detailed in their earlier reply. Secondly, with regard to their refusal to release the remaining material under Exemption 1 of the Code, MoD said that the information about military training assistance provided by the UK to Colombia contained details which were confidential to both Governments or which could put at risk both servicemen and civilian support staff. Consequently, MoD believed that disclosure would have an adverse effect on defence, security and international relations and that the application of Exemption 1 to the information was therefore appropriate.

MoD’s comments to the Ombudsman on the complaint

6. The Permanent Secretary of MoD responded on 11 June 2004. He outlined the background to Mr Bowcott’s complaint and provided a number of relevant papers: others were subsequently examined in situ. The Permanent Secretary expressed his view that, in handling Mr Bowcott’s request for information, MoD had met both the spirit and the letter of the Code, adding that MoD had gone to the length of reviewing their policy on the disclosure of information relating to the subject of military assistance to Colombia. He said that this review had been prompted by recognition of public interest in the subject. Following that review MoD had judged that, while the risk to UK personnel in Colombia remained, it was a manageable risk, given the arguments in favour of greater transparency. The outcome of the policy review had been the release of substantially more information than would have been the case previously. The Permanent Secretary said that some additional information, not requested by Mr Bowcott, had been provided to him in order to give a fuller picture of UK support for Colombia.

7. The Permanent Secretary also said that in his view MoD’s handling of Mr Bowcott’s request had been in accordance with the Code. He noted that the response to Mr Bowcott’s original request was sent within 20 working days and that it had summarised the training assistance provided between 2000 and 2003, giving the dates, purpose and overall cost of the liaison visits which had taken place. He said that the reply to Mr Bowcott had also explained that some information was being withheld and that the relevant Code exemption had been cited. He noted that when Mr Bowcott subsequently appealed against the use of the Code exemption, MoD’s decision to withhold some information was reviewed in a timely manner and a response despatched in 16 working days. The Permanent Secretary said that this response provided a substantial amount of additional detail on costs, as requested by Mr Bowcott in his appeal, had explained the rationale for upholding the decision to withhold information, and had informed Mr Bowcott of his right to take his complaint to the Ombudsman. He said that the only respect in which MoD’s handling of the request fell short of the requirements of the Code was that in their original reply to Mr Bowcott they did not inform him of his right to appeal (review).

8. With regard to the substance of the unreleased information sought by Mr Bowcott, the Permanent Secretary said that the information was confidential to both UK and Colombian Governments and was of a sensitivity which, if disclosed, could put at risk the safety of UK personnel based in Colombia. He explained that the rationale for withholding this other information about the military assistance provided by the UK to Colombia was that its provision could have the following consequences:

(a) It would cause damage to the relationship between the UK and Colombian Governments. The information concerned was confidential in nature and releasing it would cause a breach of trust with consequent harm to bilateral relations. Exemption 1(b) of the Code ‘information whose disclosure would harm the conduct of international relations or affairs’ was therefore relevant.

(b) It would cause harm to the personal security of UK personnel in Colombia. Exemption 1(a) of the Code ‘information whose disclosure would harm national security or defence’ was therefore relevant.

The Code of Practice on Access to Government Information

9. In refusing to provide the information sought by Mr Bowcott, MoD cited Exemptions 1(a) and 1(b) of the Code. Exemption 1 is headed, ‘Defence, security and international relations’ and reads:

‘(a) Information whose disclosure would harm national security or defence.

(b) Information whose disclosure would harm the conduct of international relations or affairs.

10. Exemption 1 is subject to the preamble to Part II of the Code which states that: ‘In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available. References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.’

Assessment

11. Before turning to the substantive issue of whether or not the information requested by Mr Bowcott should be released, I shall consider first how MoD handled his request for it. The Ombudsman has said that it is good practice, if departments refuse information requests, for them to identify in their responses the specific exemption or exemptions in Part II of the Code on which they are relying. Moreover, the possibility of a review under the Code needs to be made known to the person who requests the information at the time of that refusal, as does the possibility of making a complaint to the Ombudsman if, after the completion of the review process, the requester remains dissatisfied. Finally, departments are expected to respond to requests for information within 20 working days, although the Code recognises that this target may need to be extended when significant search or collation of material is required.

12. From my examination of the papers MoD appear to have handled Mr Bowcott’s request for information in full accordance with the requirements of the Code. They cited the relevant exemptions under which information was being withheld and reviewed and revised their disclosure policy on the subject of military training assistance to Colombia as a result of Mr Bowcott’s request: that review resulted in a more substantial disclosure than would previously have been the case (although MoD did not specifically draw Mr Bowcott’s attention to the policy review). However, that policy review did not prevent MoD from complying with the 20 day target time for replying to Mr Bowcott. Similarly, MoD actioned Mr Bowcott’s request for a review of their decision in a timely manner, with the review resulting in additional information being disclosed to Mr Bowcott. As the Permanent Secretary himself has noted, the only respect in which MoD’s handling of Mr Bowcott’s request fell short of the requirements of the Code was in their failure to inform Mr Bowcott of his right to request a review of their decision not to disclose the information. In all other respects, however, I find that MoD dealt with Mr Bowcott’s request for information in a proper and timely manner.

13. I turn now to the substance of the complaint. I have looked very carefully at the question of whether or not Mr Bowcott is entitled, under the Code, to the information he has requested, recognising that the Code only gives an entitlement to information and not to the documents in which the information is contained: it is on that basis that I have examined the complaint. MoD have cited Exemptions 1(a) and 1(b) as the basis on which they have withheld further information relating to UK assistance to Colombia. The purpose of Exemption 1(a) is to protect information disclosure of which would harm national security or defence and the purpose of Exemption 1(b) is to protect information which, if disclosed, would harm the conduct of international relations or affairs. The information which has been withheld by MoD relates to certain aspects of UK assistance to Colombia.

14. In considering the applicability of Exemption 1(a) and Exemption 1(b) to the withheld material, it has been necessary for me to give very careful consideration to the information contained in the documents that have been withheld. The papers I have seen reflect a range of internal considerations within MoD relating to those aspects of the assistance given to the Colombian Government, including an outline of the background as to why it was considered appropriate and making recommendations as to the form it should take. In detailing the precise nature of that assistance, specifically what, when, where and by whom, I am satisfied that disclosure of such specific information would harm national security and defence because, as MoD explained to Mr Bowcott, it would put UK personnel based in Colombia at an increased risk of terrorist action from anti-Government forces. It is consequently clear to me that Exemption 1(a) has been correctly applied to a large part of the more specific information contained within the documents withheld by MoD.

15. Turning now to Exemption 1(b), which was additionally cited by MoD, it appears to me that the subject matter of the documents, concerning the nature of the assistance to be provided and the detailed background as to why it was considered appropriate in Colombia’s case, has a direct bearing on the relationship between this country and Colombia. The Cabinet Office guidance on the interpretation of the Code (paragraph 1.5, part II) gives several examples of the potential harm that might be caused by disclosure; for example, the risk that disclosure would impede negotiations, undermine frankness and candour in diplomatic communications, and impair confidential communications and candour between governments or international bodies. Having examined the papers provided by MoD, I have no reason to doubt the Permanent Secretary’s view that the release of this further information about the assistance provided to Colombia by the UK would have a detrimental effect on the relationship between the UK and Colombian Governments. I am therefore equally satisfied that the information contained within the documents correctly falls within Exemption 1(b).

16. However, that is not the end of the matter. The Code makes it clear (paragraph 10) that in those categories, such as Exemption 1, which refer to harm or prejudice, consideration must be given as to whether or not any harm arising from disclosure is outweighed by the public interest in making information available. Mr Bowcott has argued that there is a clear public interest in information about the nature of the UK Government’s help to Colombia and ‘the question of human rights abuses’. MoD have acknowledged the public interest in the subject of UK assistance to Colombia. Having considered the information already disclosed by MoD to Mr Bowcott it seems to me that he has already been provided with a relatively large and detailed amount of information about the training support provided by the UK Government to Colombia, including dates, costings and outline reasons for the training. Having had sight of the information contained in the withheld documentation it is my view that the public interest in its disclosure is outweighed by the harm (outlined in paragraphs 8 and 14) that would be caused by making it available. In coming to that conclusion, I have borne in mind that disclosure of the information could also damage the future relationship with Colombia and compromise any further assistance. I therefore consider that MoD have gone as far as they could reasonably have been expected to go in terms of balancing the risks in the disclosure of specific information with the desire for greater transparency. Consequently, I uphold the use of Exemption 1 for the information that remains withheld.

Conclusion

17. It is for those reasons that I am satisfied that the undisclosed information requested by Mr Bowcott was correctly withheld by MoD under Exemptions 1(a) and 1(b) of the Code. I do not, therefore, uphold the complaint.

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Last updated: 10 June 2005